Charged person can't be barred from holding political party post: Centre

The Centre said this in its affidavit filed in response to the petition by BJP leader and advocate Ashwini Kumar Upadhyay seeking to bar the convicted politicians from forming a political party or becoming an office bearer of an existing political party.

The Centre on Wednesday told the Supreme Court that a person who upon his conviction in a criminal case is barred from contesting election can't be stopped from floating a political party or becoming its office bearer.

Pointing out that the office bearer of a political party was not a "representative", the Centre has told the top court that there was no "connectivity and nexus" between a person barred from contesting election to parliament or the state assembly upon conviction and prohibiting such a person from forming or becoming a member of any political party.

Referring to the 255-page report of the Law Commission, the Goswami Committee and the National Commission to Review the Working of the Constitution, the government said that in none of these reports there is a suggestion to bar a person from being an office bearer of a political party on grounds of his antecedents.

The Centre said this in its affidavit filed in response to the petition by BJP leader and advocate Ashwini Kumar Upadhyay seeking to bar the convicted politicians from forming a political party or becoming an office bearer of an existing political party.

Telling the court that the appointment of an office bearer of a political party is a matter of "party autonomy", the Centre has told the court that "It may not be apposite to preclude the Election Commission from registering a political party merely because a particular post holder is not qualified to contest election."

In the last hearing of the matter on February 12, the top court had asked that if a convicted person can't contest election then how can he be at the helms of the affairs of a political party and select candidates to contest elections.

"If a convicted person cannot contest an election, how can he be at the head of a political party select candidates to contest elections" a bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud had observed, saying that this flies in the face of top court's judgments calling for eliminating corruption.

Asking the Centre to spell out its stand on the issue, the court in its last hearing had said that "what can't be done directly, can't be done indirectly".

Earlier the Election Commission in its response had told the top court that Section 29A of the Representation of People Act, 1951 gives it the power to register a group or an association as a political party. It also vests in it the discretionary powers to grant or not to grant registration.

But once a political party is registered, then Section 29A does not expressly confer any power on the EC to de-register a political party, poll panel had said in its response pointing out that "In fact there is no explicit provision to de-registration."

However, the poll panel had sought to be empowered to deregister a political party and be authorised to issue necessary order regulating registration and de-registration particularly in view of its constitutional mandate.